Volume 4,
Issue 2,
2004

Following the African Commission's 35th ordinary session, which took place in Banjul, The Gambia, during May and June 2004, Pretoria played host to two important events relating to the African regional human rights system. The first was a seminar on the socio-economic rights provided for under the African Charter. This seminar culminated in the adoption of a statement elucidating the content of these rights, and is analysed by Sibonile Khoza in this issue. The second event, also discussed here, was the third extraordinary session of the Commission, called to discuss and adopt the report of a fact-finding mission that four commissioners had undertaken to the Darfur region of Sudan.

From the outset, HIV / AIDS posed challenges that made traditional public health approaches, such as quarantine, inappropriate. The author realised early on in the epidemic that law had a role to play in curbing the spread of HIV, but that the temptation to adopt 'highly inefficient laws' had to be resisted. The first AIDS paradox arose when it became clear that the disease could best be curbed by respecting the rights of those infected with HIV, rather than by imposing restrictions on such persons, as traditional public health approaches or popular outcries for punishment demanded. This was so because only behaviour change could curb the spread of HIV, and a human rights-based approach was regarded as the most feasible way to ensure the knowledge of and means to effect behaviour change. The author identifies a second AIDS paradox, which accompanies the greater availability of antiretroviral treatment (ARV). Seeing the solution in greater access to ARV, he argues that consideration must be given to whether past strategies of testing and counselling should be amended to 'scale up' testing and, consequently, access to ARVs. Advocating a more flexible approach, the author poses the question whether a human rights-based approach should not be replaced by a serostatus-based approach.

There is a relationship between HIV / AIDS and human rights. HIV / AIDS is the most severe epidemic to hit the globe and the African continent in particular. It is now well known that HIV / AIDS infects and affects human beings in various ways. This article contends that, at best, the HIV / AIDS pandemic in Africa can be addressed within a comprehensive human rights framework. As part of the global response to HIV / AIDS, the article explores, in depth, the role of the African Commission on Human and Peoples' Rights in addressing the HIV / AIDS scourge within its structural mandate of promoting and protecting human and peoples' rights in Africa.

In this article, the author examines constitutional challenges to statutes criminalising same-sex behaviour in three Southern African countries. On the one hand, in Botswana and Zimbabwe, the highest courts found (in the Kanane and Banana cases, respectively) that such statutes are not unconstitutional. On the other hand, the South African Constitutional Court invalidated statutes criminalising consensual sexual conduct between men in private. The main explanation for the difference is the fact that the South African Constitution outlaws unfair discrimination on the basis of sexual orientation, while the constitutions of the other two countries do not. However, the author argues that the courts in Botswana and Zimbabwe could have reached a different conclusion, had they creatively applied a broad and generous interpretative approach. Changes to the status quo depends more on the actions of those affected by these laws than on judicial interpretation.

As is the case elsewhere, privatisation in Southern Africa has since the 1990s extended to the provision of basic services. Controversy surrounds the issue whether the involvement of the private sector in the provision of basic services could enhance the enjoyment of the socio-economic rights relating to those services. This article argues that, while privatisation as a policy per se may not be objectionable, human rights law prescribes standards to which privatisation measures must conform. Southern African countries have certain socio-economic rights obligations emanating from CESCR, the African Charter and their domestic constitutions. It is argued that privatisation does not mean a delegation of state obligations in relation to human rights, although the question of privatisation has reinforced the call for the recognition of human rights obligations of private actors as well. Some of the obligations that states have in the context of the privatisation of water are explored.

This article reflects on various legal mechanisms that are available to protect traditional knowledge. Its departing point is that legal protection of traditional knowledge requires a response that is pragmatic, yet innovative. It assesses the usefulness of conventional legal machinery such as intellectual property rights and contract law and comments on the failure of these tools to accommodate the more amorphous traditional knowledge systems. The article investigates other responses, such as the conception of sui generis rights and protection by way of human rights law. In doing so, it specifically explores the African normative legal framework that could be utilised in the protection of traditional knowledge.

African countries have been subjected to various ideologies, often coinciding with wars and armed conflicts that in turn result in flagrant human rights abuses. Countries such as the DRC, Liberia, Rwanda, Sierra Leone, Sudan and Uganda are testimony to such abuses. Against the backdrop of these conflicts in Africa, this article explores numerous operational aspects relating to the jurisdiction of the International Criminal Court. It considers issues such as the basis of jurisdiction, jurisdiction over foreigners and bilateral immunity agreements. The article further explores mechanisms that can trigger the jurisdiction of the ICC. These mechanisms include state referrals, Security Council referrals and initiatives taken by the prosecutor.

Military governments in Nigeria adopted numerous decrees that ousted the jurisdiction of courts. This article investigates the role of the African Charter in challenging such ouster clauses. Despite being incorporated into Nigerian domestic law in 1983, much uncertainty still surrounds the status of the African Charter on Human and Peoples' Rights. The author criticises the decision in Abacha v Fawehinmi, in which the Nigerian Supreme Court held that the African Charter cannot be superior to the Constitution and upheld the validity of ouster clauses.With reference to case law in the United States, the author highlights the threats to human rights posed by anti-terrorist laws in the world after 11 September 2001.

The article discusses how two main approaches to the death row phenomenon can be distinguished in the jurisprudence of national courts and international human rights mechanisms. The progressive approach sees a prolonged delay in the execution of the death penalty as a violation of the prohibition against inhuman or degrading treatment. The conservative approach requires further circumstances, such as the conditions on death row and that the delay in execution is not caused by the condemned prisoner himself. The author argues that the two approaches should be easier to reconcile if courts clearly defined what they mean by torture and cruel, inhuman or degrading treatment.

The African Charter on Human and Peoples' Rights (African Charter) bestows a specific mandate on the African Commission on Human and Peoples' Rights (African Commission) to promote and protect human rights in Africa. Article 45 of the African Charter states that, in order to fulfil this mandate, the African Commission should, amongst others, organise 'seminars, symposia and conferences'. The Commission's promotional activities have paid lip service to economic, social and cultural rights by being predominantly focused on civil and political rights. Concerns have been raised by representatives of civil society organisations during several of the Commission's sessions that there is a need for a focus on socio-economic rights too.

The African Commission on Human and Peoples' Rights (African Commission) has a dual mandate, in that it aims at promoting and protecting the rights in the African Charter. Under article 59 of the African Charter on Human and Peoples' Rights (African Charter), measures taken by the African Commission remain confidential until approved by the Organization of African Unity (OAU) Assembly of Heads of State and Government (now the African Union (AU) Assembly). On the basis of this article, the sessions of the African Commission have been divided into public and private (closed) parts. During the public part of a session, the promotional work of the Commission is discussed. This part of the session includes reports by commissioners about their promotional activities, the examination of state reports submitted under article 62 of the Charter, and contributions by non-governmental organisations (NGOs) about their work and oral interventions on burning human rights issues in Africa. During private sessions, the Commission considers individual (and inter-state) communications alleging violations of the Charter by member states. This part of the proceedings is closed to the public, with the exception of litigants involved in the case.